Com. v. Shelton, J. (judgment order)

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J-S68035-19 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. JESSE RAY SHELTON Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 941 WDA 2019 Appeal from the PCRA Order Entered May 28, 2019 In the Court of Common Pleas of Lawrence County Criminal Division at No(s): CP-37-CR-0000781-2016 BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.* JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED JANUARY 17, 2020 Appellant, Jesse Ray Shelton, appeals from the order entered in the Lawrence County Court of Common Pleas, which dismissed as untimely his first petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On January 13, 2017, Appellant entered a negotiated guilty plea to failure to register. The court sentenced Appellant on January 30, 2017, to the negotiated 15 to 30 months’ imprisonment, plus one year of probation. Appellant did not appeal. On March 12, 2019, Appellant filed a counseled “motion to vacate sentence,” which the court treated as a first PCRA petition. The court held a PCRA hearing on March 22, 2019, and dismissed the petition as untimely on May 28, 2019. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. On June 24, 2019, J-S68035-19 Appellant timely filed a counseled notice of appeal. The next day, the court ordered Appellant to file a concise statement per Pa.R.A.P. 1925(b); Appellant timely complied on July 2, 2019. Preliminarily, the timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is final “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the PCRA time-bar allow very limited circumstances to excuse the late filing of a petition; a petitioner must also assert the exception within the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2). Instantly, Appellant’s judgment of sentence became final on March 1, 2017, upon expiration of the time to file a notice of appeal in the Superior Court. See Pa.R.A.P. 903(a) (allowing 30 days to file notice of appeal in Superior Court). Appellant filed his petition on March 12, 2019, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant tries to invoke the “new constitutional right” exception at Section 9545(b)(1)(iii), relying on Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018) (holding requirements -2- J-S68035-19 of Sexual Offender Registration and Notification Act (“SORNA”) constitute criminal punishment; SORNA is unconstitutional ex post facto law when applied retroactively to those sex offenders convicted of applicable crimes before SORNA’s effective date and subjected to increased registration requirements under SORNA after its passage). Nevertheless, Appellant did not file his PCRA petition within 60 days of Muniz, decided on July 19, 2017. See 42 Pa.C.S.A. § 9545(b)(2) (providing statutory window in which PCRA petitioner must assert time-bar exception);1 Commonwealth v. Leggett, 16 A.3d 1144 (Pa.Super. 2011) (holding statutory window to invoke new constitutional right exception began to run on date of judicial decision establishing alleged new constitutional right, and not on day when decision became available to petitioner in prison law library; prisoner’s ignorance of law does not excuse his failure to file PCRA petition within 60 days of judicial decision on which he relies; neither court nor correctional system is obliged to educate or update prisoners concerning changes in case law).2 Further, ____________________________________________ Section 9545(b)(2) now allows that any PCRA petition invoking a time-bar exception must be filed within one year of the date the claim first could have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective Dec. 24, 2018. This amendment applies to claims arising on or after December 24, 2017. Because our Supreme Court decided Muniz on July 19, 2017, the amendment does not apply here. Moreover, even if the amendment applied, Appellant filed the current petition more than one year after Muniz. 1 In Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015) (en banc), aff’d, 638 Pa. 687, 158 A.3d 618 (2017), this Court held that Pennsylvania courts shall no longer apply a public record presumption to pro se incarcerated 2 -3- J-S68035-19 Appellant has not established that Muniz applies retroactively to untimely PCRA petitions. See 42 Pa.C.S.A. § 9545(b)(1)(iii); Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018), appeal denied, ___ Pa. ___, 195 A.3d 559 (2018) (holding petitioner cannot rely on Muniz to meet timeliness exception under Section 9545(b)(1)(iii) until U.S. Supreme Court or Pennsylvania Supreme Court holds that Muniz is retroactive in untimely PCRA petitions). Thus, Appellant’s PCRA petition remains untimely. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/17/2020 ____________________________________________ PCRA petitioners asserting the “newly-discovered facts” time-bar exception at Section 9545(b)(1)(ii). Burton does not apply to the “new constitutional right” exception, so Appellant’s reliance on Burton is misplaced. -4-

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